jeudi 5 mai 2011

ERC at the Supreme Court of Canada: "The question then is: 'how are objections to be accommodated?' Not, 'how can they be ignored?'"

We reproduce below the factum of the Canadian Catholic School Trustees’ Association which has been granted the status of intervener at the forthcoming hearing in front of the Supreme Court of Canada in the case opposing a couple of Drummondville parents and their Quebec regional school board who refused granting them an exemption to the Ethics and Religious Culture course (ERC).

This part of the factum had to be no longer than ten pages long.

PART I - STATEMENT OF FACTS

1. The Canadian Catholic School Trustees’ Association (“CCSTA”) was granted leave to intervene in this Appeal by the Order of the Honourable Charron J. on March 28, 2011 and seeks the ability to make oral arguments at the hearing of this matter. The CCSTA accepts the facts as set out in the Appellant’s Factum.

PART II - STATEMENT OF ISSUES

2. Does the Commission scolaire des Chênes’ failure to grant the exemption request of parents to the Ethics and Religious Cultural Course (“ERC”) take into account the primary educative authority of parents and the nature of that authority in public education in light of the jurisprudence, and does this failure amount to a reviewable error?

PART III - STATEMENT OF ARGUMENT

Canadian jurisprudence, while still in its infancy, has yet to annunciate clear principles on the subject [of parental beliefs in relation to governmental powers]. The need for rules of some certainty and uniformity is plain; the public is entitled to know how far parents can pursue their religious beliefs and practices, and when the state is entitled to step in.1

3. It is clear that there is a need for principled development in relation to the jurisprudence surrounding questions of control and guidance involving education of the young. This case provides a useful framework within which to develop some of the appropriate criteria and it is towards the articulation of these that the Catholic School Trustee’s Coalition intervention is aimed.

4. This case places before this Honourable Court the question of how to reconcile parental rights and duties respecting the custody, supervision and education of children with the state’s interest in education itself. Neither the parental rights nor the state interest are in water-tight compartments since rights and interests overlap, may conflict and may need to be reconciled. All citizens benefit from having a well-educated population and that education does not occur only in schools. On the other hand, the State, to be free and democratic, must maximally respect diversity and accommodation. Education occurs in the home and through a variety of mediating institutions in a civil society; the associational aspects matter. Nonetheless, this court, and principles of democratic theory, extending back for millennia, recognize the prior responsibility and rights of parents in relation to the education of their young.2

5. The question before this Honourable Court is: In the face of parental objection to compulsory courses in a public school context that parents believe offends “conscience and religion” does the state have a duty of accommodation? Assuming such a duty of accommodation exists, what forms (such as exemptions, opt-outs or alternative delivery to Stategoals) can and should these take so as to satisfy the requirements of “minimal impairment” under Section 9.1 of the Quebec Charter and Section 1 of the Canadian Charter of Rights and
Freedoms?

6. Both Respondents have argued that the ethics and religious culture course met with favour from a Catholic theologian and received some form of general approval from the Assembly of Catholic Bishops of Quebec. With respect, the question of authoritative doctrinal pronouncements within Roman Catholicism is not established either by individual theologians or by assemblies of bishops.3 The Code of Canon Law is very clear on this matter. In any case, when a religious concern is expressed in a public setting of this sort, on the authority of Multani and Amselem it is not for the State or the courts to “get inside” the sincerely held belief of religious objectors in order to suggest that their views do not comport with the authoritative view of the religion in question.4 This court has expressly refused to take that approach in public settings of this sort. This situation is distinguishable from settings in which doctrinal rules are important to the context of the determination (as in Caldwell v. Stuart dealing with a denominational school setting in which denominational rules may be central or important to the issue being adjudicated).

7. The Canadian experience historically highlights the importance that religion and religious beliefs in relation to education have played to Confederation. It has been said that without an agreement and compact in relation to religious education “…there would have been no Confederation.”5 It has been well recognized that Confederation itself depended upon a resolution of concerns regarding religious education. These concerns about education, religion and Canadian society have not diminished over the years and many of the key decisions before this Honourable Court have involved questions relating to the scope and nature of religious beliefs in relation to education.6

8. The experience of the evolution of understanding of rights under the Canadian Charter of Rights and Freedoms has been one typified by cooperation rather than separation between religion and the state. The Canadian approach is not that of the American approach.7

9. The Canadian approach recognizes that denominational education provides for the maintenance of a particular religious ethos whether or not denominational schools are publicly funded and whether or not they are operating in provinces with Section 93 provisions in place.

10. The fact that Canada allows for a variety of schools, some based on a particular religious ethos and others not, and that these schools may be “public” in the sense that they benefit from public funding support (whether confessional or non-confessional), is an aspect of Canadian constitutionalism indicating an openness to religion in the public and is a very strong public example of diversity and pluralism in action. Thus rules relating to employment, hiring and discipline in their denominational or confessional context may not be acceptable outside of that context. That publicly funded, religiously informed education does not depend upon section 93 protections, has been established by this court.

The respondent is lawfully entitled to create and to operate a denominational school according to Roman Catholic concepts of education. There may be no specific enactment of the Legislature of the Province of British Columbia which confers this right. It is, however, an unquestioned fact that Roman Catholic schools have existed in British Columbia since the Province was formed, beside, but separate from, the public school system. For many years they have been entitled to public financial support, and attendance of pupils at such schools has been recognized as a substitute for compulsory attendance at public schools. There can be no serious question that Roman Catholic schools, having their special nature, have functioned and continue to function lawfully in the Province.8

11. In a public non-confessional context, such as the case at bar, the state interest must be particularly attentive to protect the divergent viewpoints of citizens who have the primary responsibility of educating their young and have sought to use the public educational framework to do so. In fact, the very idea of a “public” non-confessional system suggests that part of its ability to inform the greatest diversity of citizens will depend on its ability to do so sensitively and with due attentiveness to the differing beliefs of those citizens. The freedom of religion has, from the earliest decisions in Canada under the Charter, been recognized as having a public” aspect (Big M Drug Mart). And the public itself is not insulated from involvement by religious believers and their associations: in fact, “public” is in part made up of such citizens and their projects. It would be entirely self-defeating should the public systems of education alienate from it those who are willing to stay within the system as long as their particular concerns are addressed. The right to home education (a more or less complete exemption from public education) stands as a reminder that citizens have legitimate ways to avoid public educational involvement more or less entirely if they so wish. In Quebec, however, the options for diversity in relation to ethics and religious education seem to be shrinking given that the ERC is mandatory for private and public, confessional and non-confessional schools. Where a mutually co-operative and diverse public sphere is recognized, both as a reality and as a good to be pursued it is all the more important, therefore, that parental responses to this compulsory curriculum be taken seriously and not accorded merely superficial treatment and scant regard.9

12. In order for Canada to develop the robust conception of “pluralism” or “multiculturalism” (both of which may encourage “diversity”) the maintenance of which is required in Section 27 of the Charter, it is important that a religiously inclusive public sphere of the sort understood in Chamberlain be nourished by principles which keep that public sphere open and accessible to all. A key dimension to this openness is the principle of accommodation. A public sphere that is inclusive only in name will be typified by its failure to properly develop principles of accommodation. That is one of the key aspects of the case at bar. Without a meaningful duty of accommodation (and respect for subsidiarity), the powerful (including all levels of governments), how can citizens dissent from directives (such as compulsory education courses) in such a manner as to maintain diversity on legally debatable matters (such as the nature of ethics and religion)? William Galston has well noted the importance and the risks in claims for civics education and comes down strongly in favour of maximally accommodating parental objections to state imperatives for the good of the kind of citizen this encourages.10

13. Just as the Chamberlain decision provided an opportunity for rethinking and rearticulation of the meaning of “secular” in Canadian law, so this case allows this honourable court to reconsider the appropriate language to describe the open-textured nature of the public sphere in Canada in relation to religion and other beliefs. It is respectfully submitted that the term “secularism” used in obiter in Chamberlain and littered in various ways throughout the academic literature and decisions of other jurisdictions, is not the best language to use to describe the principles upon which the Canadian constitution is based because, quite apart from it antireligious origins, it is deeply confusing language. The term “secularism” as originally coined (1851) was intended to describe an ideology that was, in essence, anti-religious. Even by those who seem to believe it has a friendly settled meaning and employ its use, the term has been criticized for its “weakness” and “fuzziness.” Better terminology is needed and should be employed by this Honourable Court to describe what can much more clearly be described simply as the open or shared public sphere. Scholar and jurist Michael W. McConnell has written:

It is essential to recognize that secularism is not a neutral stance. It is a partisan stance, no less “sectarian,” in its way, than religion. In a country of many diverse traditions and perspectives – some religious, some secular – neutrality cannot be achieved by assuming that one set of beliefs is more publicly acceptable than another. We need, instead, a pluralistic conception of neutrality; a neutrality not based on spurious common ground, but based on respect for difference of opinion. In such a polity, religion can enjoy no special public role, but religious citizens and religious ideas can contribute to the commonweal along with everyone and everything else. The peculiar hostility of secular liberalism toward religion cannot be defended on liberal grounds – at least not without converting liberalism into a particular way of life.11

14. It is respectfully submitted that the appropriate term to describe the nature of the public sphere in the Canadian context, as operating under the principles of non-establishment is that the public sphere is “open”. Thus, an open public sphere (rather than the sometimes used and misleading term “open secularism”) is a vastly preferable, unambiguous and baggage-free conception that better indicates the genuinely open-textured nature of Canadian political and legal life. In a non-confessional context, the duty to accommodate is different and in some respects greater than in a confessional context due to the nature of associational life. The specific rules that govern religious education (publicly funded or private) must be different in relation to religious requirements than the setting for non-religious public education. This may seem obvious yet it has been the subject of litigation emerging from the private and public context and is important in this case.12

15. In different settings, religious communities or individuals have had to litigate for the recognition of their rights to maintain their religious beliefs in a public setting. Frequently the argument against them has been that the public setting is best understood as “secular” or “public” or that the religious rights are best exercised at home or in church in “private” This interpretation, since it fails to treat religious citizens with the same rights as non-religious citizens has been rejected by the courts.13

16. At the Court of Appeal level in Chamberlain, a case dealing with public education but the principles of analysis of which are relevant here, Mr. Justice McKenzie in giving the unanimous decision of that province’s Court of Appeal stated that:

(33) In my opinion, “strictly secular” in the School Act can only mean pluralist in the sense that moral positions are to be accorded standing in the public square irrespective of whether the position flows out of a conscience that is religiously informed or not. That meaning of strictly secular is thus pluralist or inclusive in the widest sense. …

(34) No society can be said to be truly free where only those whose morals are uninfluenced by religion are entitled to participate in deliberations related to moral issues of education in public schools. In my respectful view “strictly secular” so interpreted could not survive scrutiny in light of the freedom of conscience and religion guaranteed by s. 2 of the Charter and equality rights guaranteed by s. 15.14

At the Supreme Court of Canada all nine judges agreed with the reasoning of McKenzie J. as to the religiously inclusive meaning of “secular” so that the term in Canada now means religiously inclusive not exclusive. Characterizations of the “secular” or, as here, the public setting of education which suggest, implicitly or explicitly, that religious believers do not have the right of dissent and respect since their concept of “harm” is not shared by state authorities, are incorrect and set the stage for the minimization of the proper role of religions. The keynote now, according to Multani15is accommodation.

17. It would be a strange, hollow and superficial “respect for religion” that granted public place for only the symbols of religion (Amselem, Multani) but refused respect to more substantive dimensions of the right such as “teaching” and “dissemination” ”without fear of hindrance or reprisal” (Big M Drug Mart). In this case there is not only the fear of hindrance but, in the minds of hundreds if not thousands of parents (the record seems unclear on the numbers), the ERC stands as an actual interference with what they believe to be their foundational rights as religious parents to have their religious views respected in the public sphere as they wish to co-operate with education authorities in relation to the education of their children.

18. It has long been recognized that democratic principles benefit from an encouraging stance in relation to religions. Again, William Galston, has written:

In some measure, religion and liberal policies need each other. Religion can undergird key liberal values and practices; liberal politics can protect – and substantially accommodate – the free exercise of religion. But this relationship of mutual support dissolves if the respective proponents lose touch with what unites them. Pushed to the limit, the juridical principles and practices of a liberal society tend inevitably to corrode moralities that rest either on traditional forms of social organization or on the stern requirements of revealed religion […] liberal theorists (and activists) who deny the very existence of legitimate public involvement in matters such as family stability, moral education, and religion are unwittingly undermining the values on institutions they seek to support.16

19. Alternatives are available which show greater accommodation or less impairment of the rights in question; these better satisfy the constitutional requirements for minimal impairment. In other jurisdictions, differing parental views are accommodated either through alternative delivery possibilities (such as in British Columbia)17 or by advance notice18 of controversial materials for parents so that an informed decision about requests for exemption may be made.19

20. Of particular significance, it can be pointed out that even in certain denominational settings where there is recognized authority to teach dogmatically (a right not found in nonconfessional education) certain schools that are established on a religious basis have, nonetheless, recognized the right of objecting parents to exempt their children from courses that conflict with parental beliefs.20 If alternatives can be recognized in a confessional setting then they should be provided a fortiori in the public school setting such as the case at bar. The State’s duty to accommodate is different and greater than the duty placed upon confessional educators. The decision in Chamberlain stands for the proposition that it is impermissible for the State to make curriculum decisions based on, and to promote, a single religious viewpoint. Just as “there is no view from nowhere” establishing a course teaching about religion from a religious point of view can readily be understood as a course that makes statements (perhaps implicitly and perceived subjectively) about the relative merit of religions. The seemingly neutral claim that a course “simply” or “merely” teaches the content of religions, myths, legends or fairy tales, which many may find unexceptional, does not mean that it is so for all. To a religious parent who happens to believe that a particular religion contains more truth than others the same comparison claim, in the manner in which it is set out on compulsory materials, may be deeply offensive. From the perspective of such parents, the State’s so-called “neutral” position, therefore, can quite reasonably be viewed as far from neutral given the perspective of the religious or conscientiously objecting parents. It is for this reason that those administering courses that involve such highly contested and controversial areas as morality, ethics and religion need to have a heightened concern for the place of accommodation, exemptions or alternative delivery. It is important to recall that in Chamberlain the majority of the Court found that the Board’s decision to exclude certain textbooks from the classroom was unreasonable because:

It failed to proceed as required by the secular mandate of the School Act by letting the religious views of a certain part of a community trump the need to show equal respect for the values of other members of the community. It failed to proceed according to its own Ministry-mandated regulation which required tolerance and furtherance of prescribed curriculum learning outcomes.21

21. The ERC course puts forth, in effect, an ethical and religious viewpoint of one part of the community - - it cannot help but do so. Those who support the ethical or religious approaches found in the ERC will, by definition, not find it objectionable. Those who find it objectionable will object. The question then is: how are objections to be accommodated not, how can they be ignored? With respect, the position of the AGQ seems to be: “how best can the parental concerns be minimized and brushed aside?” In Chamberlain, at paragraph 20, the Court stated that: “the view that a certain lawful way of living is morally questionable cannot become the basis of school policy”. In the case at bar the religious viewpoint of the parents requesting exemption is, by virtue of the State’s complete dismissal of any accommodation, being viewed, in effect, as “morally questionable” and ignored. Failure to accord any respect to dissenting viewpoints by a complete avoidance of accommodation (exemptions or exploring alternative delivery) is an invidious form of disrespect. As noted by Professor Moon:

When the state treats the individual’s religious practices/beliefs as less important or less deserving of support than the beliefs/practices of others, or when her religious community is marginalized by the state in some way, the individual adherent may experience this not simply as a rejection of her views and values but also as a denial of her equal worth or desert - - as unequal treatment that affects her dignity.22

PART IV - SUBMISSIONS ON COSTS

22. The Canadian Catholic School Trustees’ Association respectfully claims no costs on this appeal and suggests none should be awarded to interveners.

PART V - ORDER REQUESTED

23. The Canadian Catholic School Trustees’ Association submits that the Appeal be allowed for the reasons set out above.

3 See materials setting out the position of the Catholic Church with regard to the authority of parents in relation to the education of their children and the authority of the local Ordinary (Bishop). Code of Canon Law [BA, Tabs 24, 25].

6 See; Shilton, Elizabeth J., “Religion and Public Education in Canada after the Charter”, in John McLaren and Harold Coward, eds. Religious Conscience, the State and the Law: Historical Contexts and Contemporary Significance (Albany: State University of New York Press, 1999) at Chap. 13 [BA Tab 16]

7 Big M Drug Mart, [1985] 1 S.C.R. at 339; Wittmann v Deutscher Schulverein, Pretoria and Others, 1998 (4) SA 423 [BA Tab 8], distinguishing Zylberberg [BA Tab 9], and other Canadian authorities on exemptions; Even where there is an extensive system of parental notifications and partial exemptions, the Grand Chamber of the European Court of Human Rights has held that the failure to grant full exemptions breached parental rights. See: Case of Folgerø and Others v. Norway (Application no. 15472/02) 29 June 2007 at 5 – 10, 36-44 [BA Tab 3].

17 In British Columbia Catholic Schools are operated under the Independent Schools Regime, which allows for parental concerns to be accommodated through alternative deliver methods; see the reference to the Independent School Act, R.S.B.C. 1996, c. 216 in the Factum for the Intervener, The Canadian Council for Christian Charities.

20 See for example in Saskatchewan, The Light of Christ Roman Catholic Separate School Division “Manual of Administrative Policy”, Policy No. 607 [BA Tab 26] which requires educators to notify parents that a course teaches themes of sexuality and human anatomy, and provides a mechanism for withdrawal from such courses; see also in the Alberta Separate School context the School Act. R.S.A. 2000 c. S-3 s. 50(1) which provides for exemptions [Ba Tab 23]